This second appeal under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 calls in question order, dated 16-12-1998 passed in appeal by the learned Additional District Judge, Rawalpindi, whereby order of ejectment was set aside and case was remanded to the Rent Controller for fresh decision.
2. Appellant filed a petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 for seeking eviction of the respondent on the ground of default and personal requirement of son of the appellant. It was claimed that respondent had failed to make payment of-rent since April, 1997 at the rate of Rs.1,000. Respondent resisted the ejectment application, denied allegation of default and maintained that rate of rent was Rs.450 per month and that he had paid rent up to January, 1998 for which no receipt was issued. It was added that rent of February, 1998, to April, 1998 was tendered through money order which was not received.
3. The learned Rent Controller, vide order, dated 28-5-1998, directed deposit of arrears of rent from April, 1997 to May, 1998 at the rate of Rs.1,000 and also required the respondent to deposit future monthly rent before 15th of each succeeding calendar month. The respondent did not comply with the order which resulted in striking of his defence by the learned Rent Controller who directed eviction of the respondent vide order, dated 18-6-1998. Appeal filed by the respondent succeeded and in consequence the eviction order was set aside by the learned Additional District Judge on 16-12-1998.
4. Learned counsel for the appellant candidly argued that the learned Additional District Judge took wholly incorrect view of the law and proceeded on extraneous considerations. It was added that passing of an order for deposit of rent and framing of issues on the same date would not vitiate order for deposit of rent. Learned counsel submitted that while determining tentative rent, the Rent Controller is not expected to make detailed inquiry or to record evidence and if it is so, there will be no need to hold further proceedings after passing of the order for deposit of rent.
5. Learned counsel for the respondent argued that the learned Rent Controller accepted the plea raised in the ejectment petition in totality and did not make any tentative assessment as provided by the Ordinance. It was further submitted that the respondent had pleaded the payment of rent which was completely ignored.
6.I have given due consideration to the submissions made and have taken into consideration the relevant material on the file.
7.The ejectment petition was filed on the ground of default in payment of rent and personal need of son of the appellant. According to the appellant, the respondent had not paid the rent from April, 1997 and that rate of rent was Rs.1,000 per month. The defence was that the rate of rent was Rs.450 per month and that payment had been made uptil January, 1998 and also that rent for subsequent period i.e. February, 1998 to April, 1998 was tendered but was not received. In this backdrop, the admitted position was that tenancy was not A disputed and that there was no bar in the way of the Rent Controller to pass an order for deposit of rent.
8. 1Jnder section 13(6) of the Ordinance, the learned Rent Controller is required to direct deposit of arrears of rent and also the future monthly rent. In case of any dispute as to arrears or rate of rent, he has to determine the amount and also the rate, approximately and to direct the tenant to make deposit accordingly, pending decision of the case. Tentative determination or approximate assessm ent would not mean the ultimate assessment or final adjudication. It is in this context that subsection (8) to section 13 of the Ordinance has been provided which contemplates that the rent deposited by the tenant is subject to final determination, at the conclusion of proceedings or on such earlier dates as may be fixed by the Rent Controller. The Rent Controller is not expected to make a detailed inquiry or to record evidence as has been incorrectly assumed by the learned Additional District Judge. All that the parties are required to place on record their cards and supporting material. The Rent 8 Controller on the basis of material on record has to make tentative determination which of course, is subject to final decision at the end of trial. It is necessary for tenant to place the material on record and if the Rent Controller, after I considering such material makes tentative assessm ent of rate and arrears of rent, then the tenant is expected to comply with the order, without prejudice to his defence on merit, which of course has to be considered after the evidence is recorded. Mere fact that amount of arrears is exorbitant or the rate is excessive, C would not possibly be a ground to challenge the order. The only clog in the way of the Rent Controller against passing of order is challenge to his jurisdiction. If the jurisdiction is challenged or tenancy is denied, then the question pertaining to very exercise of jurisdiction has to be determined as a preliminary step. Likewise, the Rent Controller cannot pass an order for deposit of arrears exceeding three years, prior to institution of the ejectment petition. However, if the. Rent Controller tentatively determines the arrears relying on the existing material and directs the tenant to deposit the same, then the tenant is bound to comply with the order to avoid penal consequences. In this case, the amount of arrears, required to be deposited, was Rs.12,650 which cannot be said to be beyond financial capacity of the tenant nor could be termed to have been arbitrarily determined.
The learned Additional District Judge illegally assumed that the Rent Controller should have made inquiry and collected evidence for the purpose of passing an order for deposit of arrears of rent.
This interpretation is self-assumptive and contrary to the provision of section 13(6) of the Ordinance. It may be observed that, on being asked, learned counsel for the respondent did not deny that respondent even did not deposit the arrears of rent, according to the rate as, claimed by him in the written statement. According to him rate of rent was Rs.450 per month and if the respondent was of the view that his liability was to the extent of payment of Rs.450 per month, he could have, with a view to show his bona fide, deposited the arrears of rent at the said rate and thereafter, question- the validity of order in appeal. This appears to have not been done. It is also observed that. The respondent claimed payment of rent without receipt. In this situation, there was possibly no other way out for the Rent Controller but to ask him to deposit the arrears for which he had no, prima facie, proof of deposit or tender. The order could not be struck down for the reason that the same was made without making elaborate inquiry or collecting evidence.
9. Another reason which prevailed with the learned Additional District Judge was that order for deposit of rent was passed on the slate when issues were also framed and that two things could not be done together. It is true that order for deposit of rent has to be passed by the Rent Controller either on the first date of hearing or on any subsequent date before the framing of issues. If the Rent Controller has failed to pass any order for deposit of rent before framing of issues, it would not mean that he will be debarred to pass an order for deposit of p rent, after the issues are framed.
Reference can be made to Mst. Mehmooda Begum v. Mst. Mehmooda Jan 1973 SCM R 131. Similarly, if order for deposit of rent precedes the framing of issues, then no fault can be found to the course adopted by the Rent Controller. The order for deposit of rent in this case having been passed and then issues framed, the same course cannot be said to be suffering from any jurisdictional error nor could have the effect of vitiating the order and any object to this effect will be too technical. In this view of the matter, the order passed in appeal cannot sustain.
10. Since the learned Additional District Judge has not examined the question of wilful default, therefore, the case will have to be remanded for decision of the appeal on merit.
11. For the reasons above, this appeal is allowed, the impugned order of the learned Additional District Judge is set aside, with the result that appeal filedby the respondent shall be deemed to be pending, which shall be decided afresh, in accordance with law and in the light of observations made herein above.
12. The parties shall appear before the learned District Judge, Rawalpindi on 28-1-1999, who will entrust the appeal to any Additional District Judge, other than the learned Additional District Judge who has already decided the appeal. The learned Additional District Judge will decide the appeal within two months, after hearing the two sides, with intimation to the Additional Registrar of this Court.